Justice vs. 'apartheid' in America

ByJames A. Kushner, James A. Kushner is professor of constitutional law at Southwestern University in Los Angeles and author of ''Apartheid in America'' and ''Housing and Community Development.''August 10, 1982

The United States Supreme Court, when it issued Brown v. Board of Education, believed that it was ending the pernicious doctrine of ''separate but equal'' whereby schools, particularly in the South, were maintained on a strictly segregated basis. After nearly 30 years under the rule of Brown, the most heavily populated areas of the nation view that rule as a bad social experiment, one which will soon be forgotten.

Hope for that end is supplied by the powerful antibusing congressional movement and the court's ruling in Crawford v. Board of Education, the Los Angeles case, that allows the popular will of the states to lock local courts into step with the increasingly conservative US high court.

It is not without irony that in the South, Brown has been relatively successful in achieving public school integration and ending, in large measure, the terrible stigma worn by that region for so long. The US Supreme Court has developed school desegregation law with a flourish of revisionism. First suggesting that discriminatory results violated the Constitution and later that schools could be desegregated only on the showing that segregation resulted from intent.

Although the Los Angeles case, and a case in Denver, require a showing of intent, the court has developed a number of evidentiary rules to demonstrate intent. The Denver case requires that the plaintiffs prove intent only in a significant portion of the district. Cases in Dayton and Columbus require only that the plaintiff prove that schools were operated on a segregated basis as of 1954 and the school board failed to take affirmative steps to desegregate. Assuming one can amass the elusive proof of intent, however, the Detroit case prohibits the courts from including suburban school districts in a desegregation remedy unless tied to the constitutional violation.

The fundamental flaw in the court's reasoning is that every city in the nation with a black population has operated a strictly segregated housing market. Most public housing, including the housing built for workers in World War II, was operated on a segregated basis, and a condition for receiving Federal Housing Administration mortgage insurance was the maintenance of subdivisions on a racially homogeneous basis. Superimpose a neighborhood school attendance zone policy and the recipe yields segregated schools.

It is about time that the court extend the rationale of the Dayton and Columbus cases to require that proof of the operation of a dual housing market and the failure since 1954 of school districts to take appropriate integrative action to remedy racial isolation constitutes a constitutional violation. A study of housing markets will disclose the symbiotic relationship between suburbs, the federally imposed ''separate but equal'' housing policies, and central city segregation, permitting a metropolitan desegregation remedy.

Studies have demonstrated that less busing is required to desegregate entire metropolitan areas than plans limited solely to the central city, and that, where communities have effectively integrated their schools, neighborhood integration increases. The converse, of course, is that the failure to desegregate promotes housing segregation as whites choose housing so as to guarantee admission to predominantly white schools.

One argument made by the antibusing forces is that their opposition is not related to race but safety and economy and that they support fair housing and the dismantlement of segregation through housing integration. Although the number of family housing moves required to desegregate major cities is staggering, fair housing enforcement would significantly aid in reducing the rising trend of racial isolation. An initiative for pursuing an open housing policy has yet to be uttered from the antibusing forces.

Racial isolation, particularly in the face of the loss of central city jobs, and the inflating costs of transportation to the suburban job centers, has created separate and unequal societies.

The situation promises great conflict for our children and their progeny. The longer society ignores the problem of apartheid in America, the more difficult and costly will be the eventual remedy. As Supreme Court Justice Thurgood Marshall has warned, the only hope that our children learn to live together is if they learn together.